Profile
Current position: Judge on the Gauteng Division of the High Court; Pretoria
Date appointed: October 2019
Candidate bio:
Since 2017 van Der Schyff has acted for four terms in the Gauteng Division of the High Court.
In 2018 she heard the matter of Shaibu v The State, which was an appeal against a magistrate’s refusal to grant bail to the appellant, a Ghanaian citizen
who stood trial for alleged offences under the Drug Trafficking Act.
Van Der Schyff held that it was clear from the record that the magistrate had applied his mind to the decision, and had posed numerous questions to both legal representatives.
She identified the main issue as being whether the appellant constituted a flight risk:
“Given that the appellant is not a citizen of the country and that he was only in the country for a few days before he was arrested; that he is in the country on a visitor’s visa; that the appellant’s travel visa has already expired; that the charge against the appellant is of a very serious nature and will attract a heavy sentence if the appellant is found guilty; that the appellant does not have any assets in the country; that the state has a strong case against the appellant; and that there is nothing keeping the appellant in the country, the learned magistrate found that the appellant did not discharge the onus to prove that he does not constitute a flight risk and that it is in the interest of justice to release him on bail.”
Van Der Schyff AJ held that the magistrate had “carefully considered all the facts” before refusing bail and dismissed the appeal.
Fifty-three year-old van Der Schyff has a BA (1987), LLB (1989), LLM (cum laude, 2003) from the University of Pochefstroom and an LLD (2007) from the North West University.
She ran her own attorney’s practise for ten years and also lectured at North West University.
Some of her academic articles include Stewardship Doctrines of Public Trust: Has the eagle of Public Trust Landed on South African Soil? and The Right to be Granted Access over the Property of Others in Order to Enter Prospecting or Mining Areas: Revisiting Joubert v Maranda Mining Company (Pty) Ltd, which examined the minerals law regime introduced by the Mineral and Petroleum Resources Development Act (MPRDA).
The latter article notes the complex relationship between the holders of rights to minerals and landowners “when the nuanced differentiation between the terms “enter” and “access” comes into play.”
The article argues that the new mineral law regime introduced by the MPRDA, makes it unjustifiable to “summarily accept” that legal principles developed under the entirely different common law regime “apply unchanged in a new regime.”
“The foundational basis of the rights and concomitant ancillary rights that exist in this new regime must be re-determined.”
October 2019 Interview:
October 2019 Interview Synopsis:
Professor Elmarie van der Schyff, a full-time academic, is a rare breed to come before the JSC. Indeed, instead of the usual questions about reserved judgments to kick off the interview, the Chief Justice’s questions focused almost exclusively on Ms van der Schyff’s LLM thesis which dealt with the nationalisation of water rights, and the controversies related to these. The Chief Justice then moved to the more controversial question of the nationalisation of mineral rights (which he has written a judgment, and which Ms van der Schyff has written her doctoral thesis) and asked whether she agreed with his Agri SA v Minister of Mineral Resources judgment. “You will not believer it but I do agree with you, CJ” Ms van der Schyff responded, drawing laughter across the room.
Judge President Mlambo asked about Ms van der Schyff’s experience in criminal work, which she explained that, although it was new to her as an acting judge, she had dealt with criminal work as an attorney. The question of her experience later crept up when Commissioner CP Fourie, representing the attorney’s profession, raised a concern from practitioners who had appear before her, “one hears colleagues speak…that practically and procedurally, you are still battling.” She conceded that in her first acting stint she battled with court procedures but in later acting stints she gained confidence by studying court procedures and keeping herself abreast of developments.
Unsurprisingly, the question of nationalisation came to dominate Ms van der Schyff’s interview. Several commissioners asked her views on the nationalisation of water, the nationalisation of minerals and, naturally, the nationalisation of land. In each instance, she explained that she believed that the new legal order ushered in by the 1996 Constitution upended property relations, with certain kinds of property classes like land, water and minerals being for the common good, as opposed to for individual benefit.
An interesting point in the interview related to Ms van der Schyff’s community work. Commissioner Jomo Nyambi (an MP) asked whether she had ever worked with previously disadvantaged communities? Ms van der Shyff explained that as a professor based at the formerly-white, exclusively-Afrikaans Potchefstroom campus of North West University, she was the first in the Law Faculty to adopt English-medium teaching in order to accommodate black students who were struggling to follow her lectures through translation devices. She also cited the example of her voluntarily mentoring students at the University of Venda, including travelling to the university to offer lectures on a voluntary basis.
A controversial aspect of Ms van der Schyff’s community involvement concerned her membership of Solidariteit, an organization which predominately advocates for rights of Afrikaners. She explained that she joined the organisation in 2016 purely to request their assistance for a disabled orphan, however she resigned soon afterwards based on her disagreement with the organisation’s views.
Professor Elmarie van der Shyff was recommended for appointment.
